Subway : Sue Fresh

We have a sprinkling of branches of Subway in Ireland, and more recently a few branches of competitors Quiznos have been spotted in the wild. I make the occasional trip to Subway, usually for the meatball marinara sub (they put something evil and addictive in the sauce, I suspect). But it’s not a major spot on my itinerary, and thus I was unaware of the fierce competition between Subway and Quiznos, which has ended up (inevitably) in court. So far, so so-so, but there’s an interesting use of a famous piece of Internet law that is being followed with great interest in these parts and elsewhere…

The section in question is section 230 of the Communications Decency Act (CDA), or the Internet ‘shield’ or ‘immunity’ law. The Act itself is infamous for other reasons (parts of it were struck down in ACLU v Reno, the first Supreme Court decision on Internet free expression), but this element has survived and prospered. S 230 was added without a huge amount of debate as a ‘good Samaritan’ clause to protect intermediaries.

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

It solved a fun but fruitless debate on the liability of message board hosts and others for the things written by their users – which was heading into an odd paradox whereby those who made some effort to keep things ‘clean’ were more likely to have their head on the chopping block than those who let things run without interference. So post-section 230, your typical admin can safely act as a censor or a libertarian and rely on statutory immunity. Caselaw clarifies that this means that there’s no liability in tort (typically, defamation; IP law is dealt with separately in a later, less generous statute) attached to the host for the actions of the user. The controversial cases usually turn on where the host has exercised some level of control, or (in the California – where else – case of Barrett v Rosenthal), whether an individual user who posts someone else’s comments online can rely on the section. (The answers: doesn’t usually make a difference, and yes they can, respectively).

Anyway, back to the cut-throat (or cut-loaf) world of sandwiches. Subway are after Quiznos because the latter organised a competition for fans of Quiznos to make videos slagging off Subway (are you keeping up at the back? Cool). Quiznos are relying on section 230, saying that they were merely the host and any liability is with the individual contributors alone. Subway argue in response that Quiznos, as organisers/promoters/etc of the competition, bear some responsibility.

Interesting complexity is provided by the Roommates.com case, where the 9th Circuit Court of Appeal seemed to buck the trend and found that the site couldn’t rely on full s 230 immunity – but that case is awaiting en banc (full court) rehearing.

I have mixed views about section 230. On one hand, it certainly facilitates the growth of new web sites and services, and promotes freedom of expression in some ways. On the other hand, I think we’re a long way from the policy goals that were behind the original section, especially where a commercial advertiser is basically getting all the benefit from the content (i.e. it’s really *their* advertising) with none of the risks (if they are successful in their claim).

If the section is revisited, it’s a good opportunity to evaluate the rights-and-responsibilities of the various actors in the Internet game – and to distinguish, perhaps, between different levels of intermediary (the fact that the individual-forwarding-a-message in Barrett and the running-through-the-tubes ISP are under the same heading makes it hard to fashion a coherent response to new cases). Furthermore, the relationship between section 230 and private censorship and gatekeeping could be reconsidered – perhaps, to give just one example, services based on openness, open source, non-discriminatory values of expression and communication rights, and so on, could benefit from a greater degree of immunity than the more closed and restrictive services that are not really platforms at all but tightly controlled environments where the host *is* the provider. In any event, if this case goes the distance, we’ll learn a lot more about what section 230 really means.

Spotted at Rebecca Tushnet‘s wonderful blog and also discussed in this New York Times article from earlier in the week (complete with some of the videos). And read the EFF’s archive of section 230 cases here.